| There are two different understandings of the sources of authority agency in theory and in judicial practice in China:monistic and dualistic. According to the former, the authority can only come from the principal's authorization, whereas according to the latter, the authority can also come from the agent's duty in the enterprise. The Draft of the General Part of Civil Code of People's Republic of China adopts the dualistic theory, but the principal's authorization and the agent's duty in the enterprise can not cover all kinds of authority resources. The provisions of the Draft will cause new problems in judicial practice. According to German law, the abstract principle that authorization acts as the source of authority means that the source of authority can exist independent of its basic relationship. There are two kinds of source of agency:one is directly given by a law to a special agent; the other comes from the grant action of the principal. But there are hardly any legal provisions in Chinese law directly empowering such agency and the special agent can not be registered by commercial registration system in China. Considering the complex and mixed succession of the Chinese agent legal system and the combined legislation mode of civil and commercial codes, this author argues that the Civil Code of PRC should recognize the pluralism of the sources of agency. Namely, apart from grant action, the authority can also come from the provisions of law that directly give special agents specific authority. The authority can also come from trading custom or general social ideas. With respect to the undisclosed principal agency provided for in Art.403 of Contract Law, the authority should come from the contract between the principal and the agent. |
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